In the early 2000s, eDiscovery was still the Wild West. Before the Federal Rules of Civil Procedure were amended in 2006 to address eDiscovery in the wake of the Zubulake cases (with opinions from 2003 to 2005), and even afterward, few, if any, clear standards existed governing the use of electronically stored information (ESI) in litigation.
To fill this gap, lawyer George Socha and technology specialist Tom Gelbmann launched the EDRM (then the Electronic Discovery Reference Model) in 2005. The EDRM, now a part of Duke Law School, is a community of lawyers, technology providers, judges, scholars, business leaders, students, and others that are “working to shape the evolution” of eDiscovery.
The EDRM Model
One of the earliest—and most important—accomplishments of the EDRM was to set forth a diagram explaining the stages of the eDiscovery process. Today, the EDRM diagram divides eDiscovery into nine stages that are not necessarily linear; some projects may include all or just some of these stages, or multiple iterations of some of the stages, and the stages may or may not occur in the order set forth in the diagram.
The nine stages are as follows:
1. Information governance (IG): IG is the foundation for eDiscovery, as it is the way organizations manage their data, from cradle to grave. IG may include an elaborate series of policies, procedures, and controls. The EDRM has created its own Information Governance Reference Model.
2. Identification: In this stage, organizations work with document custodians and search their repositories to locate data sources that are potentially relevant to a matter.
3. Preservation: Organizations must store ESI in a forensically sound manner for processing and review in discovery; this means organizations must implement a legal hold that instructs data custodians not to destroy any of their information and that suspends any IG protocols that might destroy or otherwise alter data to avoid the spoliation of evidence.
4. Collection: During this phase, organizations use defensible, forensically sound techniques to gather all potentially relevant data (including metadata) for a matter.
5. Processing: Here, organizations, often under the guidance of a seasoned eDiscovery vendor, apply technological tools to prepare the data for review and analysis; some tools will be designed to reduce the volume of ESI by eliminating system files, duplicates, and irrelevant information.
6. Review: The organization reviews the collected data to determine whether it is relevant to the legal matter at hand and, if so, whether it is privileged.
7. Analysis: Lawyers study the relevant ESI to understand key patterns in the case, develop case theories, and formulate strategies for the remainder of discovery and litigation as a whole. Analysis occurs throughout the entire eDiscovery process.
8. Production: The organization turns over the responsive, nonprivileged ESI to the party(ies) requesting its production according to an agreed-upon protocol and applicable procedural rules or court orders.
9. Presentation: The use of data in the courtroom or in other legal proceedings.
The EDRM is an excellent starting point for organizations looking to define their eDiscovery processes, but keep in mind that it is just a starting point: many other processes, tasks, and technologies play a role in creating an efficient eDiscovery workflow. For guidance on creating a defensible, efficient eDiscovery workflow for your organization, get in touch.